Lau Tat Wa v. Clp Power Hong Kong Ltd and Others

HCPI 854/2017

[2023] HKCFI 1036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 854 OF 2017

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D E C I S I O N

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1.The plaintiff (“Lau”) commenced the present action for personal injuries sustained in the course of his work as an engineer of the 1^st defendant (“CLP”) in October 2014. He allegedly fell into an uncovered cable trench at a power substation of CLP in the course of on-site testing work. He sustained 2 broken ribs and laceration of a leg as well as post-traumatic severe disorder (“PTSD”). Lau puts forward a claim for damages in the sum of HK$21 million against CLP and its two contractors allegedly responsible for the site at the time.

2.Three applications are now before the court:

(1)  CLP’s summons filed on 9 June 2022 to strike out parts of Lau’s 3^rd witness statement (“the Strike Out Summons”);

(2)  CLP’s summons filed on 14 June 2022 for leave to call the psychiatric experts on quantum to give oral evidence at the trial (“the Expert Summons”); and

(3)  Lau’s summons filed on 16 June 2022 against CLP for specific discovery of documents (“the Discovery Summons”).

THE STRIKE OUT SUMMONS

The principles

3.Counsel for CLP fairly summarises the relevant principles, which I would adopt for the present purpose. What needs to be added is that as in any similar application, order for striking out should be ordered only in clear and obvious case.

4.Witness statements which contain inadmissible evidence, such as expression of mere opinion, scandalous or irrelevant or otherwise oppressive materials are liable to be struck out: see Hong Kong Civil Procedure 2023 at §38/2A/15; Talent Weaving Dyeing & Printing Ltd v Able Billion Textiles Ltd [2013] 2 HKLRD 479. Relevance is decided with reference to the pleading.

5.Irrelevant or inadmissible evidence in witness statements are liable to be struck out as otherwise it will lead to embarrassment and unnecessary confusion, and it will also be a waste of time and effort for the other party to have to respond to it: see Chung Ming Yu & Ors v Next Magazine Publishing Limited & Anor HCA 785/2011 (14 November 2017) at §34.

Lau’s 3^rd witness statement

6.The parts of the 3^rd witness statement of Lau being impugned are put under 3 categories:

(1)  Allegations against CLP and its personnel for their acts and treatment of him after his resumption of work (§§11, 31-32);

(2)  Allegations in respect of other accidents (§79); and

(3)  Allegations in respect of CLP’s witness (§§85-86).

§§11, 31-32

7.The parts of the statement being impugned indisputably concern the issue of quantum, specifically the issue of alleged loss of promotion prospect as a result of his disabilities after Lau has resumed work at CLP upon the expiry of his sick leave.

8.Insofar as promotion is concerned, there is no dispute that Lau entered CLP as a graduate trainee and was at the material time engineer of what is known as G1 grade. Above such grade would be what are known as MP4, MP3 and MP2 grades. Each grade promotion would come with salary increment.

9.The pleaded case of Lau in this respect, according to his revised statement of damages, is this:

(1)  Before the accident, he worked as an engineer of Grade G1 at a maintenance department. He claims total loss of income from such position until the expiry of his sick leave.

(2)  After the expiry of his sick leave, Lau resumed work but was assigned to another 2 departments, namely operation planning and then asset management branch, with a view to change to light duty clerical work. It is his pleaded case that this was due to his disabilities and reduced work capacity as a result of the injuries.

(3)  Lau contends that but for the accident, he would have continued to work as engineer in a maintenance department (ie his pre-accident department). On this basis, with his background and further accumulation of experience from working as such, he would have been promoted every 2 years up the ladder to Grade MP4, MP3 and by now to Grade MP2 already. Lau claims the difference in income and other employment benefits on this basis up to trial.

(4)  As for future loss of earnings, Lau contends that but for the accident, he would have continued to work at Grade MP2 as mentioned above until retirement. It was his disabilities as a result of the accident which cause him to continue to be unable to perform normal and full engineering work and would have to continue with light duty and clerical duty. In view of the light duty assignment, and the consequential loss of accumulation of working experience from his pre-accident work at a maintenance department, he anticipates that he would remain at the grade of G1 at the asset management branch. On this basis, he claims future loss in terms of the difference in income and other employment benefits until retirement.

(5)  In terms of loss of earning capacity, it is also his pleaded case that by reason of his disabilities arising from the accident, his choice of work becomes unduly restricted and his chance of promotion becomes unduly limited.

10.Essentially it is Lau’s own pleaded case that the accident resulted in his disabilities, which caused his inability to resume his pre-accident assignment as Engineer II at a maintenance department. He could only manage light duty work and hence his assignment to the other departments. The fact of such alternative assignments as a result of his disabilities has deprived him of the accumulation of engineering work experience and promotion prospect which he would have had, had he continued to work at a maintenance department. It is not his contention that he would have been promoted in his post-accident assigned position but for his disabilities.

11.Lau has filed his 1^st witness statement. This was followed by the 1^st witness statement of, amongst others, Ms Ng Yee Lin Loretta (“Ng”), Deputy Director of Human Resources (Power Systems) of CLP. Lau then filed his 2^nd witness statement. Ng filed her 2^nd witness statement afterwards. In these witness statements, the makers stated their respective versions of the job positions and promotion considerations within CLP applicable to Lau before the accident and after his resumption of work.

12.Then came the 3^rd witness statement of Lau. In the impugned paragraphs under this section, Lau makes series of specific allegations against the management of CLP and its various personnel, including the Managing Director蔣東強, Chan Andy Wing Sang, Cheng Yat Pan, Cheung Bridget Suet Ngan, Ho Cathen Yiu Kei, Leung Thomas Siu Yiu; Ho Raymond and various unidentified superior(s) and colleagues. In essence, the allegations are that CLP management and his colleagues have demonstrated systematic and repeated suppression and discrimination against him in his post-accident assigned positions on the ground of his disabilities.

13.These allegations against the management of CLP and the colleagues of Lau are undoubtedly degrading charges. These allegations raised for the first time serve to create an impression prejudicial to CLP as an employer as well as its management and work culture. However, they are irrelevant.

14.As mentioned, Lau’s own pleaded case is that he is disabled from resuming his pre-accident position at a maintenance department and hence the need for his assignment to other departments for light duties. That change necessitated by his disabilities caused him the loss of what he could have obtained from continuing to work at his pre-accident department and hence the anticipated promotion prospect to senior positions as such. On this basis, he claims the difference in income and employment benefits as well as loss of earning capacity.

15.As also mentioned, it is never the pleaded case of Lau that he would have been promoted working in his post-accident assigned position. Nor is it ever his pleaded case that he was deprived of his promotion prospect working in his post-accident assigned position as a result of the newly alleged systematic suppression and discrimination by the management and his colleagues against him.

16.Allowing these newly raised allegations against specific personnel of CLP in these paragraphs of the 3^rd witness statement to remain will entail the giving of an opportunity to CLP to adduce evidence to respond. Where these allegations are irrelevant in terms of Lau’s own pleaded case in respect of his claim for loss of earnings and earning capacity, calling upon CLP to adduce all the necessary evidence, documentary and oral, to respond would be unjustified and entirely out of proportion.

17.It should be noted that those acting for Lau in their pre-application correspondence indeed explained that these newly raised allegations against CLP would serve to implicate general credibility. That only reinforces the observation of the court above. In principle, it is trite that evidence does not become relevant and admissible merely because it may be viewed as relevant to general credibility: see Mohammad Amjad v John M Pickavant & Co [2013] 1 HKC 145 at 205B-206A.

18.CLP is not being put on trial as to whether or not it is a good and caring employer in treating Lau, but in respect of the issues between them for Lau’s pleaded causes of action for damages. The court must also guard against turning the trial of the present action into a collateral arena for adjudicating any discrimination issue complained against CLP or its personnel by Lau.

§79

19.§79 of Lau’s 3^rd witness statement should be read in the context of its preceding paragraphs. One then understands that these paragraphs apparently respond to the witness statement of Cheung Pang Wing (“Cheung”) for CLP in respect of the accident and the system of work at the site. Specifically, Lau states his case on the alleged lack of pre-work risk assessment by CLP.

20.Then comes §79 where Lau essentially refers to the alleged repeated industrial accidents in the past and the restructure of safety and safety documents, including the pre-work risk assessment document, of CLP. That, Lau says, proves that there are all sorts of problems and room for improvement in CLP’s safety and management structure.

21.CLP complains that such allegation about repeated industrial accidents in the past is raised out of the blue and embarrassing. I tend to agree.

22.First, the alleged repeated accidents, their time frames and their nature are completely left unmentioned by Lau. So is how any of these alleged accidents could relate to the circumstances of the accident in the present case, including particularly the pleaded breach of duties on the part of CLP that is said to have caused the accident in the present case. CLP could not be fairly expected to be able to respond to such new allegations.

23.Second, it is not a mere question of inadequate particularisation in witness statement. If any given industrial accident or past incident is said to be relevant to the issue of liability, its particulars and relevance should be properly put forward. For instance, it is not uncommon for a claimant to refer to previous work accident or incident of complaint about specific work safety to his employer, which, if properly advanced, would be relevant to the issue of reasonable knowledge on the part of the employer and hence the employer’s duty to prevent the relevant safety risk at work and thus the accident in question. What Lau introduces in this paragraph of his 3^rd witness statement is nowhere near such legitimate deployment. It should also be noted that insofar as it is alleged that CLP knew or ought to have known the risk of damage or injury to which Lau was exposed to, the pleaded case of Lau is nothing but general.

24.Third, other than for the purpose as discussed above, introduction of the alleged repeated accidents in the past to demonstrate the general attitude of CLP towards its employee’s welfare and safety does not align with the principles governing similar fact evidence. The principles explained in Choi Chun Ming v Cosco-HIT Terminals (Hong Kong) Ltd & Anor [2009] 3 HKLRD 402 at §13, as summarised by counsel for CLP, say:

(1)  Similar fact evidence which is relevant to and potentially probative of a pleaded issue in dispute is admissible in a civil suit.

(2)  The court shall balance the potential significance of the evidence in the context of the whole case.

(3)  Stress must be laid on the burden of time, costs and personnel resources of a lengthened trial.

(4)  Distinction must be drawn between evidence having a direct relation to the question in issue and evidence relating to collateral facts causing distortion of the trial and distraction of the decision maker.

(5)  Potentially probative evidence will be admitted unless outweighed by unfair prejudice to the opponent by a considerable margin.

25.In Amy So v Tony Chiu Yun Kan & Ors CACV 212/1994 (17 March 1995), which was cited in Choi Chun Ming (above), the court accepted that in civil cases, the courts will admit evidence of similar facts if it is logically probative, i.e. if it is logically relevant in determining the matter which is in issue. However, facts which prove nothing more than likelihood of repetition, although logically relevant, should be rejected on grounds of fairness, since they tend to waste time, embarrass the inquiry with collateral issues, prejudice the parties with the facts finding tribunal, and encourage attacks without notice. There is a distinction between evidence having a direct relation to the principal question in dispute and evidence relating to collateral facts, which will, if established, tend to elucidate that question. As the judge points out, to make the latter admissible the party tendering the evidence must satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute and also to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive.

26.In the circumstances, the impugned paragraphs of Lau’s 3^rd witness statement should not be allowed to remain.

§§85-86

27.In his witness statement, Shek Man Wai (“Shek”) for CLP explains that he was one of the colleagues of Lau working with him on site at the time of the accident. As he admitted in his statement, he did not witness how the accident happened. His evidence mainly concerns the setting of the power substation, the position and duties of Lau, the testing procedure to be performed, the interior setting of the power substation, the work plan for the day, the occurrence of the accident, the lighting and environment as well as safety training and equipment at the material time.

28.Lau himself stated the context and purpose of this part of his 3^rd witness statement. That is to respond to the witness statement of Shek or, in other words, the evidence mentioned above.

29.In §85 of his 3^rd witness statement, Lau refers to his approach to Shek to be his witness in respect of the accident, which Shek refused. Lau did not insist, upon consideration of what he believes or understands to be imminent promotion of Shek by CLP at the time. Whilst there seems to be implication against Shek, this was Lau’s own thought in explanation of his decision not to cause Shek difficulty by persuading him to testify for him. Viewed this way, this is not objectionable. Whether and, if yes, how far Lau will put to Shek in this respect at the trial, I am sure, will be closely monitored by those acting for CLP at the trial.

30.In §86 of his 3^rd witness statement, Lau specifically responds to §1 of the witness statement of Shek where Shek refers to his current position (as at January 2022) and his major duties over his 28 years of service at CLP. In his §86, Lau repeats the long service of Shek and benefits prior to the accident. So far, this is not objectionable.

31.However, Lau goes further. He refers to Shek’s promotion to his current rank, but remarked that there were at the time of the accident 2 other colleagues of similar grade as Shek and they possessed similar years of experience in the team but higher educational and working experience as well as incentive than that of Shek. Ending there, it is unclear what Lau seeks to suggest by these remarks about Shek that could be relevant as a response to this part of the statement of Shek.

32.If anything, one is given the impression that Lau is suggesting that the Shek has received preferential treatments and promotion which would have been unwarranted or inexplicable unless that had to do with his apparently siding with CLP instead of him in the present case. Such implication exceeds what might have saved §85 of Lau’s 3^rd witness statement discussed above. Evidence adduced this way for the sole purpose of attacking general credibility of a person is inadmissible: see Mohammad Amjad (above).

33.One way or the other, if allowed, such evidence of Lau will entail CLP having to adduce evidence to somehow justify the employment terms and promotion of Shek who have indeed been an employee of CLP for nearly 30 years by now.

Conclusion

34.All matters considered, the parts of the 3^rd witness statement of Lau that, I find, are clearly liable to be struck out are now identified and shown in Appendix hereto.

THE EXPERT SUMMONS

The principles

35.Counsel for CLP correctly cites the following principles recently explained in B K Amrit v G-Cladds Limited and Another [2022] HKCFI 585.

(1)  The key consideration is whether their oral testimony under cross-examination is necessary to assist the trial judge in resolving the disputed trial issues (§149).

(2)  The parties and the court have to consider whether adducing oral evidence is the appropriate technique to assist the trial judge. Cross examination of the experts is aimed to test the basis and weight of their expert opinion given in the compiled report, especially in the skilled areas on which they differ (§150).

(3)  The court would take into account the importance of the disagreement to the core issues before it, whether it is necessary to resolve the disagreement, and if so, whether this could be done without hearing oral evidence (§139).

The joint psychiatric expert report

36.Dr Wong Chung Kwong (“Dr Wong”) for the defendants and Dr Cheung Hung Kin (“Dr Cheung”) produced their joint psychiatric expert report dated 2 October 2019.

37.Essentially, CLP argues that in view of the obvious differences in the psychiatric experts’ opinion as set out in their joint report, it is necessary for the proper and just resolution of their differences for them to be cross-examined at trial so that their respective basis of opinion can be tested. Without that, it will be difficult for the trial judge to adjudicate.

38.What do the experts say? The report recorded the information obtained from the documents and interview of Lau by the experts. This was followed by the mental state examination (“MSE”). There is no issue as to methodology in the MSE. Both experts emphasized to Lau the importance of doing his best and conducting himself truthfully in the test. The MSE consisted of tests on his orientation, memory and cognitive functions. The experts jointly conducted the same tests. They recorded the same examination findings.

39.Adopting the same diagnostic manual (ie the widely known DSM-5), the experts agreed with the treating psychiatrist that Lau has suffered from PTSD, which was solely caused by the accident (if it is established as a matter of fact as alleged). Both experts came to the view that the current severity of the residual PTSD symptoms is only mild. The experts did not have substantially different assessment of the indicative percentage of psychiatric impairment of the whole person of Lau. Dr Wong said 1% whereas Dr Cheung said 3%.

40.What accounted for the different degrees of psychiatric disabilities, albeit mild, was the experts’ interpretation of Lau’s indisputable poor performance at the MSE. Dr Wong opined that Lau showed huge exaggeration of mental symptoms, and the expert explained his basis in detail. Whilst Dr Cheung referred to the issue of malingering in his response, there was in fact no such issue. What Dr Wong referred to was huge exaggeration of symptoms so that Lau’s accounts about them and their effect on him should be subject to meticulous verification. Dr Wong in his subsequent response section in the report also made that clear.

41.As to (huge) exaggeration of symptoms, which Dr Wong indeed referred to, Dr Cheung, in his own words, offered an alternative interpretation which could just as well explain Lau’s poor performance in the MSE tests. Essentially, the expert’s theme is one of viewing the circumstances of Lau and hence his state and performance at the MSE with certain degree of empathy. So viewed, the poor performance of Lau might just be the result of loss of concentration and tiredness. The expert gave his explanation in detail.

42.Dr Wong had the further chance of comment, and he did so in the further section in the joint report. Much of that was recapitulation of his opinion given in his previous sections in the joint report. In terms of understanding such difference between the experts and their respective bases, this court does not see the degree of difficulty which counsel for CLP suggests. Nor does this court foresee the extent of further input or clarification from the experts that could only be expected from cross examination of the experts at the trial.

43.The experts continued to provide their opinion on the impact of the residual psychiatric symptoms on Lau’s earning capacity. As mentioned, both experts noted the fact that Lau has resumed work at CLP. They also provided their opinion on the indicative percentage of psychiatric impairment of Lau, which ranged from 1% to 3%. They differed in respect of the reasonable sick leave. So did they in respect of the prognosis and hence need for further treatment from the psychiatric perspective. They were all well explained by the experts.

44.No doubt the medical expert opinion, and in this case both orthopaedic and psychiatric, will have bearing on Lau’s case on his work capacity and promotion prospect and therefore his claim for loss of future earnings and earning capacity. However, in view of the psychiatric expert opinion set out in the joint report as summarised above, it appears to me that what needs to be cross examined about is not really the experts’ bases for their opinion but the genuineness of Lau’s complaints. As Dr Wong stated in the joint report, it is Lau’s complaint about his disabilities that should be subject to meticulous verification at the trial. The trial judge should be able to come to his findings in this respect upon global consideration of the evidence of Lau after cross examination and the expert evidence as set out in their joint report.

45.As the psychiatric expert opinion now stands, I am not persuaded that the experts need to be called for cross examination at the trial.

THE DISCOVERY SUMMONS

The principles

46.The following principles are not in real dispute.

(1)  There must be sufficient evidence or prima facie case that: (a) the requested documents exist; (b) the requested documents relate to a matter in issue in the action; (c) the requested documents are in the possession, custody or power of the other party.

(2)  The Peruvian Guano test remains the test of relevance. A document is relevant if: (i) it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or (ii) it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences.

(3)  However, “fishing” is not allowed, and discovery should not be oppressive. If oppression is suggested, the court will weigh any such potential oppression against the possible injustice that would be caused if the materials are not available at trial.

(4)  Once the three prerequisites mentioned above are satisfied, the court still has a discretion whether or not to order discovery.

(5)  The discovery must be necessary for disposing fairly of the cause or matter or for saving costs. The court should have regard to third party interests, including confidentiality.

(6)  The court should take into account the objectives of the Civil Justice Reform, which are to promote proportionality, cost effectiveness and fairness between the parties.

(7)  The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(8)  The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.

See K&L Gates v Navin Kumar Aggarwal and Others HCA 1061/2011 (27 November 2017) at §§15-19.

The request generally

47.According to the pre-application correspondence, Lau’s request originated as one for information with documentary support. When formal application was conceived, those acting for him chose not to pursue the request by way of interrogatories. The application now taken out is and can only be considered solely as one for the documents requested. As counsel for Lau indicates in his submission, legal representatives of Lau expect to do their own analysis once the documents requested are disclosed.

48.Among other things, CLP complains that substantial amount of time, resources and manpower are required to retrieve and analyse voluminous human resources documents, gather and tidy statistics, in order to generate the figures sought by Lau. In view of the stance of Lau mentioned in the preceding paragraph, the only question is whether or not there is reason to believe the requested documents exist and, if yes, whether or not they should be ordered to be disclosed. CLP is not expected to research and compile the document requested if it is not already existing. If CLP may also consider it necessary to conduct a similar analysis on the basis of the documents intended to be done by Lau, that would be because of its need in due course to answer the case so advanced by Lau.

49.There are 11 items of requested documents framed in the following terms:

(1)  Documents showing the number of graduate trainees from 2006 to 2010;

(2)  Documents showing the current rank held by each graduate trainee mentioned in (1) above and their respective paths of promotion;

(3)  Documents showing the number of candidates who were qualified to be promoted to MP4, MP3 and MP2 from 2014 to 2022;

(4)  Documents showing the number of job vacancies of MP4, MP3 and MP2 ranks available during 2014 to 2022;

(5)  Document showing the number of applicants for job vacancies of MP4, MP3 and MP2 mentioned in (4) above;

(6)  Documents showing the number of applicants who were graduate trainees and who were not, among the applicants mentioned in item (5) above;

(7)  Documents showing the number of applicants who succeeded in being promoted to MP4, MP3 and MP2 in respect of the job vacancies of MP4, MP3 and MP2 mentioned in (4) above;

(8)  Among the successful applicants mentioned in item (7) above, documents showing the number of applicants who were graduate trainees and the number of applicants who were not;

(9)  Among the successful applicants mentioned in item (7) above, documents showing the number of applicants who have gone through the internal promotion process and the number of applicants who have been directly appointed;

(10)  Amongst the successful applicants mentioned in item (7) above, documents showing the number of applicants who (a) have been a Member of Hong Kong Institute of Engineers (“MHKIE”) or Chartered Engineer (“CENG”) on the date of the appointment; (b) have only obtained MHKIE or CENG when he/she was holding acting position; and (c) have been promoted without MHKIE and CENG;

(11)  Copy of the career invitation email from Mr Chan Hin Sang (“Chan”) to the plaintiff in about the end of 2014.

“Documents showing…”

50.If it is going to be any document containing mention of the number referred to under each item of request, the necessary search for and the volume of all those documents for the period covered by the request in discharge of an order could be substantial. This is a fair concern from the perspective of the complying party of an order. This concern applies to most of the items.

Relevance and probative value

51.The response of CLP, as also set out in its witness statement, is essentially that promotion of an engineer to high grades was not guaranteed but subject to individual circumstances, requirements and competition in different departments at different points of time. As to qualification, CLP explains that the MHKIE qualification has ceased to be a pre-requisite but would be viewed as an advantage of a candidate. That Lau did not possess such qualification before the accident would not have affected him in terms of prospect of promotion to higher grades. Further, it is argued that Lau’s case is not that a fixed percentage of graduate trainees would automatically receive a promotion each year. It is therefore doubtful how useful the information concerning the promotion of other employees in similar position could be.

52.There is no contention that promotion of Lau was guaranteed. There are bound to be variables affecting the individual employee’s prospect of promotion. How these variables would come into play might also be subject to different business environments and corporate considerations prevailing at the time. That said, in most cases where a plaintiff alleges the likelihood of his promotion but for the accident, he would only be expected to prove the probabilities of what he says would probably have happened. That must be tested against the objective circumstances. Amongst those circumstances would be what in fact happened to the other employees, particularly those of the same grade or qualification as the plaintiff immediately before the accident, in terms of career development. Evidence of that should cast light on the probabilities of similar opportunities or chance which the plaintiff allegedly missed due to the accident and his consequential disabilities.

53.Counsel for Lau argues that the law does not require the plaintiff to prove that his performance stood out clearly from others. Nor that promotion would have been a must after a certain number of years. In issue is the alleged reasonable prospect of promotion, which is a matter of probabilities to be found by the trial judge on the basis of evidence of the objective circumstances mentioned in the preceding paragraph. I tend to agree. As to the bearing of the variable of the individual circumstances accounting for promotion, no doubt that will be a matter of Lau’s formulation of his argument on the basis of the available evidence as well as the parties’ argument on the merits presented to the trial judge.

54.Apart from the specific career invitation email from Chan (ie item (11)), what Lau essentially hopes to figure out from the documents requested would be the following information:

(1)  the number of graduate trainees like him recruited by CLP in each year between 2006 and 2010;

(2)  the development of each graduate trainee mentioned in (1), ie, his contemporaries, in terms of ranks in CLP;

(3)  the number of vacancies of the ranks of MP4, MP3 and MP2 during the period between his accident in 2014 and 2022;

(4)  the success rate of applications for such vacancies in those years;

(5)  of the successful applications for such vacancies in those years:

(a)  the number who joined as graduate trainees like Lau (and those who were not);

(b)  the number who were promoted and those who were directly appointed to those ranks;

(c)  the number who possessed MHKIE or CENG qualifications before appointments to those vacancies.

55.Lau requests for documents showing the above numbers.

Item (1)

56.By affirmation, CLP provided the information requested. Between 2006 and 2010, there were altogether 51 graduate trainee intakes. Counsel for Lau confirms that he no longer pursues this item of specific discovery. Therefore, no order is made in respect of the request for this item.

Item (2)

57.All matters considered, the request is allowed in the following terms:

“personnel profiles, records or reports showing: (i) the current rank held by each graduate trainee recruited by the 1^st defendant during the period between 2006 and 2010; and (ii) their respective history of promotion to the current rank.”

Item (3)

58.In his submission, counsel for Lau blames CLP for mixing up promotion requirements for vacancies of the ranks on the one hand with the prerequisites (such as published qualifications) for promotion to such ranks on the other hand. It is not the former but the latter which he is seeking from CLP. However, I do not share the view that any mixing up in the understanding was the failure of CLP, in view of how the request is framed.

59.The request is not for documents showing the prerequisites for promotion to such ranks over the years. The request is for documents showing the number of “candidates” who met those prerequisites. Therefore, the request does not entail the CLP having to research and to compile the information, ie the number of “candidates” meeting the prerequisites for each of the higher ranks. The request entails disclosure of the document(s) showing such number. If there is no such document, as CLP does say, that will be the answer to the request.

60.In any event, I am not impressed that this item of request is of probative value for Lau’s purpose, particularly when the other items of requests below already contained information from which the percentage success of promotion to those ranks may be derived.

61.All matters considered, no order is made in respect of this item.

Item (4)

62.The answer by affirmation of CLP impresses me that whilst there is said to be no document as defined in the request, there is apparently source of information, presumably document-based, enabling it to come up with the numbers of, amongst others, promotions, new positions created and other vacancies set out in the affirmation.

63.All matters considered, this item is allowed in the following terms:

“company records, reports, recruitment plans or statistics showing the number of vacancies of the MP4, MP3 and MP2 ranks for the years between 2014 and 2022.”

Item (5)

64.By affirmation, CLP explained that CLP advertised numerous vacancies and received applications from time to time all year round. Application documents from time to time over the years are therefore voluminous. However, the real point is that the company does not have document stating the number of applications received. Essentially, those acting for Lau expressed disbelief.

65.Where the explanation by affidavit is not inherently or shown to be incredible, my view is that one has to take it from there. In any event, when Lau is also seeking specific discovery of documents which may provide information such as the number of graduate trainees like Lau, the vacancies of the higher ranks, the appointments to those vacancies and the history of their promotion over the years, the information should suffice for forming the basis for examining the chance of promotion which Lau is said to have missed.

66.All matters considered, no order is made in respect of this item.

Item (6)

67.See item (5) above.

Item (7); (8); (9); (10)

68.CLP by affirmation explained that there is no such document under each of these items of request.

69.In line with the discussion in respect of items (4) and (5), it suffices for an order to be made in the following terms covering items (7), (8), (9) and (10) of the request:

“personnel profiles, company records, reports or statistics showing:

(1) the number of appointments made to the vacancies of the ranks mentioned in item (4) above;

(2) of the appointments mentioned in (1) above:

(a) the number of appointees who first joined CLP as graduate trainees;

(b) the number of appointees who followed the rank by rank promotions and those who were appointed to a rank directly without following such promotion;

(c) the number of appointees who possessed the MHKIE or CENG qualification by the time of their appointment.”

Item (11)

70.CLP confirmed by affidavit that its information technology team has searched Chan’s mailbox but could not locate any copy of the email from Chan referred to by Lau. There seems to be no dispute that Chan has left CLP since the end of 2020. CLP claims that such document, if ever existing, ceased to be in its possession, power and custody for disclosure. Counsel for Lau argues that the explanation by affirmation is without substance and falls short of reasonable steps to disclose the requested document.

71.Counsel argues that there is no deposition as to effort made by CLP to contact Chan to confirm if the document exists. However, the application is taken out on the basis of Lau’s own case that it does or should exist. The only question is locating and disclosing it by CLP.

72.Counsel also argues that there was no deposition as to what period the search by CLP’s team covered. However, the document was an alleged email, the timing and form of which need no elaboration. Lau himself specified the nature of the alleged email and its time being about the end of 2014. There is no basis for any suggestion that somehow CLP’s team would seek to locate the alleged email in Chan’s email box for any period different from that specified by Lau. Nor should CLP be expected to act on the assumption that Lau may be mistaken about the time of the alleged email.

73.In its response by affirmation, CLP indeed commented on the likelihood of the existence of the alleged email upon failure to locate it. To that, counsel for Lau responds and argues otherwise. However, these are quite beside the point for the present purpose. These are expected to be tested in the oral evidence and argued in submission at the trial.

74.In my view, Lau has to take CLP’s answer by affirmation in respect of the existence of this item from there.

Rider

75.CLP raises concern about the sensitive and confidential personal data in the employees’ profiles. This is valid, but could be addressed by proper redaction.

ORDER AND COSTS

76.In respect of the Strike Out Summons, the parts of the 3^rd witness statement of Lau are struck out as identified and shown in red in Appendix hereto.

77.The Expert Summons is dismissed.

78.In respect of the Discovery Summons:

(1)  CLP do within 35 days from the date hereof:

(a)  file and serve an affidavit stating whether or not it has or had at any time in its possession, custody or power any of the documents set out in §§57, 63 and 69 above, and if the documents or any of them have been but is not now in its possession, custody or power stating when it parted with the same and what has become of them;

(b)  file and serve further list of documents with the documents mentioned above which are in its possession and there be inspection of those documents by Lau within 14 days thereafter;

(2)  Nothing in (1) above requires CLP to disclose personal data contained in any of the documents, which it has liberty to redact for the purpose of compliance with this order.

79.Following generally the above outcome, Lau shall have his costs of resisting the Expert Summons while CLP shall have its costs of the Strike Out Summons, both in any event. As to the Discovery Summons, the outcome is such that there is basis for simply ordering the parties to bear their own costs of this application. Costs shall be taxed, if not agreed, with certificate for counsel. Lau’s own costs shall be taxed in accordance with legal aid regulations. This costs order is nisi, which, in the absence of application to vary in 14 days, will become absolute without further order of the court.

Mr Erik Shum, instructed by Lau & Chan, assigned by Director of Legal Aid,for the plaintiff

Mr Simon Wong, instructed by Mayer Brown, for the 1^st defendant

Clyde & Co, for the 2^nd and 3^rd defendants, absent

Appendix